United States District Court, District of Columbia
G. Sullivan, Judge United States District Court
Marcus McDaniel worked as a Safety & Occupational Health
Manager for the Natural Resources Conservation Service
(“NRCS”) at the U.S. Department of Agriculture
(“USDA”) from August 2008 to July 2009. Compl.,
ECF No. 1, ¶ 1. Mr. McDaniel (African-American) was
terminated during his one-year probationary period for
unsatisfactory performance and behavior. Id. On May
4, 2012, Mr. McDaniel filed a Complaint against the Secretary
of Agriculture, Thomas Vilsack (“Secretary” or
“Defendant”), alleging that Mr. McDaniel's
supervisors discriminated against him because of his race and
sex by harassing him and terminating his employment in
violation of Title VII of the Civil Rights Act of 1964, 43
U.S.C. § 2003, et seq., and 42 U.S.C. §
1981. Id. The Secretary has moved for summary
judgment on the basis that Mr. McDaniel was lawfully
terminated during his one-year probationary period for
legitimate, non-discriminatory reasons, including his
aggressive and unprofessional behavior. Def.'s Mem. Supp.
Mot. Summ. J. (“Def.'s Mem. Supp.”), ECF No.
32 at 7. Defendant further maintains that Mr. McDaniel is
unable to prove the stated reasons for his termination were
actually pretext for racial or sexist animus. Id.
23-24. Upon review of Defendant's motion, the responses
and replies thereto, and for the reasons discussed below,
Defendant's Motion for Summary Judgment is
Mr. McDaniel's employment at NCRS
McDaniel started working for NCRS on August 18, 2008 as its
Safety and Occupational Health Manager, subject to a one-year
probationary period. Compl. ¶ 4. Ms. Sandra McWhirter
(African American) served as Mr. McDaniel's immediate
supervisor and Mr. John Glover (African American) served as
his second level supervisor. Id. ¶ 7. Mr.
McDaniel got along well with Ms. McWhirter and Mr. Glover.
Id. In April 2009, Mr. McDaniel received a positive
review from Ms. McWhirter. See ECF No. 35-10 at 1-8.
McDaniel claims that “everything changed” in
January 2009 when Mr. Glover, who served as the head of Human
Resources (“HR”), was replaced by Ms. Eloris
Speight (African American) who “took an active dislike
to plaintiff.” Id. ¶ 8. One point of
contention between Ms. Speight and Mr. McDaniel was her
concern about where his position should fall within the
USDA's organizational structure. McDaniel 2014 Dep., ECF
NO. 32 at 80; 26: 6-20. Ms. Speight even directed Mr.
McDaniel to research the question. Id. 73:21-22. Mr.
McDaniel perceived Ms. Speight's inquiry as a threat,
alleging that Ms. Speight “threateningly pointed out to
plaintiff that she could fire him at any time-and for no
reason at all-during his probationary period . . . .”
Id. ¶ 10. In June 2009, Ms. McWhirter was
replaced by Ms. Yevette Gray (African American) and Ms.
Letitia Tommer (African American). After this transition, Mr.
McDaniel alleges that “things became even more
hostile” for him. Pl.'s Mem. Opp. at 3.
remainder of Mr. McDaniel's Complaint includes sparse
factual allegations. Mr. McDaniel summarily argues that
“defendant, through his subordinate managers at the
NRCS, discriminated against plaintiff based on his race and
sex by (i) harassing him on the job (ii) preventing him from
performing his duties and responsibilities, and (iii)
terminating his employment with USDA and removing him from
the Federal Service effective July 31, 2009.” Compl.
¶ 16. Although not alleged in his Complaint, Mr.
McDaniel testified during his deposition that Ms. Speight
told him that he is not white and should “stop acting
white.” McDaniel Deposition, ECF No. 32 at 82; 32:
3-13. Ms. Speight denies ever making such a statement.
Speight Dep., ECF No. 35 at 23. Mr. McDaniel also testified
that his termination was motivated by race and his gender
The fact that me being articulate and well-versed in what I
was doing was either unacceptable to Eloris, Yvette, and
Tish, or unbelievable. So I assumed they had a common mind
frame, like if - it can't be what it looks like, so why
are we to assume anything other than what Eloris is telling
us, or why do we care, why don't we look into it for
McDaniel 2011 Dep., ECF No. 32, 12-13.
Concerns about Mr. McDaniel's aggressive behavior and
colleagues expressed concern about Mr. McDaniel's
aggressive and unprofessional behavior. Def.'s Mem.
Supp., ECF No. 32 at 3-7. The reported incidents generally
involved Mr. McDaniel acting unprofessionally by raising his
voice to superiors, making inappropriate comments and
displaying disrespectful body language during meetings.
See e.g. Deposition of Denise Cooke (“Cooke
2011 Dep.”), ECF No. 32 at 25, Ex. 2 at 117:18 - 118:1
(“I heard his loud voice more than one time.”);
Deposition of Eloris Speight (“Speight 2011 Dep.), ECF
No. 32 at 37, Ex. 3 at 92:16 - 92:21 (testifying that Mr.
McDaniel often raised his voice to the point that Ms. Speight
felt that “she was not going to take his disrespect,
you know, any longer.”). One incident was so disturbing
that agency employees discussed whether they should call
security. See e.g. Deposition of Sandra Detter
(“Detter 2011 Dep.”), ECF No. 32 at 53, Ex. 4 at
59:5-59:17 (“ I remember  when I heard a loud and
angry male voice coming through the wall from the next - from
the office next door . . . the incident was unusual because
it was not normal to be able to hear voices through the
wall.”); Id. at 61:13-61:15 (“Well, I
wonder[ed] what's going on, Denise said you need to call
- should we call security, you know, we don't know - we
didn't know what to do.”). Mr. McDaniel does not
deny that he raised his voice to his supervisors, but
testified that “I would not have said anything in a
threatening manner.” Deposition of Marcus McDaniel
(“McDaniel 2014 Dep.”), ECF No. 32 at 86, Ex. 9.
female staff members testified that they felt
“afraid” of Mr. McDaniel, particularly because
they believed he was allowed to carry a gun for his duties.
Cooke Dep., ECF No. 32 at 34; 121:11-122:10 (“Q. Then
on what basis where you afraid of him? A. Because I heard him
expressing a loud voice.  He seemed to have something
pinned up or built up inside of him and I felt
intimidated.”) Some staff members created an escape
plan in the event Mr. McDaniel “snapped” and
turned violent. Cooke 2011 Dep. at 119:8-119:19 (“He
put me in fear that he might snap” and “if he
snapped, I'm not sure what he might do.”).
McDaniel was also prone to acting unprofessionally in
meetings. Detter 2011 Dep., ECF No. 32 at 55; 18:10-18:19;
23:14-23:17. Mr. McDaniel would throw himself back in his
chair, roll his eyes, and sigh. Id., ECF No. 32 at
59; 54: 5-10 (“at the time, I had a teenage daughter at
home - and he was acting just like her, and I thought it was
just disrespectful.”). Several employees also observed
and reported Mr. McDaniel's rude and inappropriate
behavior towards his supervisor, Ms. Speight. Deposition of
Rebecca Rogenbuck (“Rogenbuck Dep.”), ECF No. 32
at 6, 60:18-61:13 (“Q: And when he told you that he
said this to her, what was your opinion of that communication
by Mr. McDaniel? A: I thought that was a rude thing to say to
Mr. McDaniel's termination
the end of Mr. McDaniel's probationary period, Ms.
Speight conducted a meeting of his current supervisors and
other HR personnel to discuss whether Mr. McDaniel passed his
probationary period. Speight Dep., ECF No. 32 at 42 -43. At
that meeting, no disagreement was expressed with the
recommendation to terminate Mr. McDaniel, whose termination
letter stated, in part:
Based on feedback received from management, it has been
determined that your conduct in performing your job has been
unsatisfactory. During your short tenure with the Agency, you
have demonstrated an unwillingness to accept direction and
accomplish work items as prescribed. Moreover, the manner in
which you have behaved in dealings with management and other
agency personnel related to such matters as Environmental
Management Systems (EMS), interagency contract acquiring
Employee Assistance Program (EAP) and Office of Workers'
Compensation (OWCP) services, etc., has been challenging and
unprofessional. It is our determination that during your
probationary period you have failed to demonstrate your
potential to be an asset to the agency.
Termination Letter, ECF No. 32-1 at 72.
support of this litigation, Mr. McDaniel obtained affidavits
from Mr. Glover and Ms. McWhirter. Glover Aff., ECF No. 35,
Ex. 12; McWhirter Aff., ECF No. 35, Ex. 13. Mr. Glover states
that “[d]uring the time I was his second line
supervisor, I had no issues or concerns with [Mr.
McDaniel's] performance, conduct or attitude.”
Glover Aff. at 2. Ms. McWhirter noted that she gave Mr.
McDaniel a positive April 2009 review, rating him
“fully successful.” McWhirter Aff. at 3. Ms.
McWhirter also stated that she never received any Complaints
about Mr. McDaniel until Ms. Speight became Acting Director.
Id. Both Mr. Glover and Ms. McWhirter state that
they do not have a basis to conclude that Mr. McDaniel was
terminated because of his race or sex. Glover Aff. at 5;
McWhirter Aff. at 6.